CHAUNCEY L. BURNETT V. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 22,200O
TO BE PUBLISHED
,
1999-SC-0384-DG
CHAUNCEY L. BURNETT
ON REVIEW FROM COURT OF APPEALS
97-CA-2076-MR
JEFFERSON CIRCUIT COURT NO. 97-CR-110
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING AND REMANDING
Appellant, Chauncey Burnett, was convicted of first-degree trafficking in a
controlled substance and first-degree persistent felony offender. He was sentenced to
five years’ imprisonment which was enhanced to fifteen years on the PFO I charge. His
conviction and sentence were affirmed by the Court of Appeals. We granted
discretionary review and reverse.
Burnett raises the same issues in this appeal that were addressed by the Court
of Appeals: (1) whether the trial court should have granted his motion for a directed
verdict; and (2) whether the jury instructions denied him his right to a unanimous
verdict.
FACTS
On November 15, 1996, Louisville police, responding to a narcotics complaint in
an area of Clarksdale Housing Project known for frequent drug trafficking activity, saw
Burnett duck behind and then enter a car. When the vehicle drove away, police
followed until the vehicle came to a stop and the police observed Burnett getting out of
the back seat on the passenger side of the vehicle. Burnett went to a nearby pay
phone, and made a telephone call. The police moved in, suspecting that Burnett was
engaged in trafficking activity. After conducting a pat down of Burnett, the police asked
for, and obtained permission from the owner of the vehicle, Burnett’s sister, to conduct
a search of the vehicle. While searching the back seat, a small bag fell out of the
vehicle onto the ground. The officer opened the bag, finding individually wrapped
pieces of crack cocaine. Officer Scott, who was standing next to Burnett’s sister during
the search, testified that when the drugs were discovered, she stated, “It [the bag]
wasn’t hers and it had to be his [Burnett’s].”
DIRECTED VERDICT
Burnett first argues that the evidence presented against him was insufficient to
support his trafficking conviction. “On appellate review, the test of a directed verdict is,
if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt,
only then the defendant is entitled to a directed verdict of acquittal.” Commonwealth v.
Benham, KY., 816 S.W.2d 186, 187 (1991). Upon review of the evidence presented by
the Commonwealth, it was not clearly unreasonable for Burnett’s jury to find him guilty.
The crux of Burnett’s argument is that there was no proof that he had actual or
constructive possession of the drugs.
Rather, he argues that the proof showed that
Elizabeth, and not he, had constructive possession of the drugs. In support of this
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argument, he cites to Leave11 v. Commonwealth, Ky., 737 S.W.2d 695 (1987), and Paul
v. Commonwealth, Ky. App., 765 S.W.2d 24 (1988).
The Leave11 Court held, “The person who owns or exercises dominion or control
over a motor vehicle in which contraband is concealed, is deemed to possess the
contraband.” Leavell, 737 S.W.2d
at 697, citing United States v. Vergara, 687 F.2d 57
(5th Cir. 1982). The main fact supporting the conclusion that the appellant had
dominion or control over the vehicle was that the appellant had the ignition key to a
vehicle which had some ninety pounds of marijuana in its trunk. Id. While the key did
not open the trunk, there was testimony that the owner of the car had relinquished
possession of the car to the appellant by giving him the keys to the vehicle. Id. Further,
the appellant was prevented from taking actual physical possession of the vehicle only
by the intervention of his arrest. Id.
In Paul v. Commonwealth, the appellant was a back seat passenger in a vehicle
that was stopped for speeding by a state trooper. Paul, 765 S.W.2d at 25. The trooper
smelled marijuana and found small marijuana roaches in the dashboard ashtray. Id.
The trooper then ordered the occupants (four in all) out of the vehicle. Id. After
advising the four of their Miranda rights, he asked who owned the marijuana. Id. After
no one volunteered, the trooper arrested all of them for constructive possession. Id.
At the police station, the appellant was discovered to be in possession of small
amounts of marijuana and cocaine. Id.
The appellant moved to suppress the drug evidence on grounds that the trooper
did not have probable cause to arrest her in the first place because she could not be
“constructively presumed to be in possession of everything in that car.”
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Id. at 25-26.
The trial court denied the motion and the appellant entered a conditional guilty plea. Id.
at 26. The Paul Court reversed the appellant’s conviction stating:
It has already been held that the person who owns or
exercises dominion or control over a motor vehicle is
deemed to be the possessor of any contraband discovered
inside it. . . . The owner of the vehicle in which [the
appellant] was riding was seated in the front seat, and
another individual was driving. [The appellant] was neither
the owner nor the person who had dominion or control of the
vehicle. She was a back seat passenger.
While the arrests were being made the driver
admitted to the detective that he had been smoking
marijuana. The detective smelled marijuana and saw
marijuana at the driver’s feet. He also observed roaches in
the front ashtray. Thus, the detective had probable cause to
arrest the driver, but not [the appellant].
Furthermore, a person’s mere presence in the same
car with a criminal offender does not authorize an inference
of participation in a conspiracy. The probable cause
requirement is not satisfied by one’s mere propinquity to
others independently suspected of criminal activity.
As the arrest violated [the appellants] constitutional
rights, the evidence against her that was subsequently
discovered should have been suppressed.
Id. (internal citations omitted).
s t ,
The case at bar is factually distinguishable from F i in rtwo respects. t
Paul
h
e
crack cocaine was found in the back seat next to where Burnett had been sitting as
opposed to being found near the driver in the dashboard ashtray as was the case in
Paul- In other words, in the case at bar, the cocaine was found in an area in the car
within Burnett’s immediate control. Whereas, in Paul, the marijuana was found in an
area outside of the appellant’s immediate control and inside an area within the
immediate control of the front seat passengers of the vehicle. Second, in Paul, none of
the occupants admitted to possessing the marijuana. In the case at bar, Elizabeth
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disavowed possession and claimed that the crack cocaine must have belonged to
Burnett.
We agree that Leavell, supra, establishes the principle that proof that a
defendant has possession and control of a vehicle is evidence to support a conviction
for constructive possession of contraband found within the vehicle. However, we do not
believe that either Leave11 or Paul establishes the principle that proof that someone
other than a passenger-defendant had possession or control of a vehicle in which
contraband is found, precludes a finding that the passenger-defendant was in
constructive possession of the contraband. Rather, we believe that ownership and
control of the vehicle is only one factor to consider in these types of cases.
To prove constructive possession, the Commonwealth must present evidence
which establishes that the contraband was subject to the defendant’s dominion and
control. Hararave v. Commonwealth, Ky., 724 S.W.2d 202, 203 (1986) cert. denied
484 U.S. 821, 108 S. Ct. 81, 98 L. Ed. 2d 43 (1987). The proof offered by the
Commonwealth in this case to show that Burnett was in constructive possession of the
cocaine was: (1) that the cocaine was found in an area in the car next to where Burnett
had previously been sitting, i.e., in an area within his immediate control; and (2) that the
owner of the car disavowed possession of the drugs and claimed that they belonged to
Burnett. While not overwhelming, the evidence was sufficient to create an issue of fact
for the jury.
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UNANIMOUS VERDICT
Burnett next argues that the jury instructions denied him a unanimous verdict.
We agree.
The jury instruction for the first-degree trafficking charge provides:
You will find the Defendant, Chauncey L. Burnett,
guilty under this Instruction if you believe from the evidence
all of the following:
A.
That in Jefferson County, Kentucky, on or
about the 15th day of November 1996, the Defendant had in
his possession a quantity of cocaine;
B.
That in so doing, the Defendant knew the
substance was Cocaine;
AND
That he had the cocaine in his possession with
C.
the intent to traffic in it.
If you find the Defendant guilty under this Instruction,
you will say so by your verdict and no more.
The above instruction is circular in that it required the jury to find Burnett guilty of
trafficking in cocaine if it believed from the evidence that he trafficked in cocaine. In
other words, this instruction failed to set forth the statutory elements of the trafficking
offense. Those elements were provided in a latter instruction, which defined trafficking
as: “Trafficking-means to manufacture, distribute, dispense, sell or transfer a
controlled substance.” This is the same definition of “traffic” as provided in KRS
218A.010(24).
In objecting to the jury instructions, Burnett argued that the Commonwealth’s
sole theory of guilt on the trafficking charge was that he possessed the cocaine with the
intent to sell it and that the instructions permitted the jury to find guilt on theories that
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were not supported by the evidence, &g., that he possessed the cocaine with intent to
manufacture it. Even though the trial court agreed with Burnett and specifically found
that the evidence presented only supported the theory that the cocaine was possessed
with the intent to sell, the trial court denied the motion and gave the instructions as set
forth above.
The instructions given in this case varied from the model instruction for firstdegree trafficking in a controlled substance as set forth in 1 Cooper, Kentuckv
Instructions to Juries (Criminal) 5 9.1 IA, which provides in pertinent part:
You will find the Defendant guilty of First-Degree
Trafficking in a Controlled Substance under this Instruction
if, and only if, you believe from the evidence all of the
following:
A.
That in this county on or about
had in his possession a quantity of
(date) . . . , he
(ID substance);
B.
That he knew the substance possessed by him was
s u b s t a n c e ) ;
(ID
AND
C.
That he had the
(ID substance) in his
possession with the intent of [(selling) (distributing)
(dispensing) it to another person;] [manufacturing (ID
substance]
Thus, unlike the instruction given in the case at bar, under the model instruction
for first-degree trafficking in a controlled substance, the elements of the offense are set
forth in the instruction rather than requiring the jury to refer to the definition section.
Furthermore, under the model instruction, the jury is instructed only as to those
statutory methods of trafficking that are actually supported by the evidence. Whereas
giving the jury the general, statutory definition of trafficking likely will result in the jury
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being presented with theories of guilt not supported by the evidence. This is exactly
what happened in the case at bar.
“Section 7 of the Kentucky Constitution requires a unanimous verdict reached by
a jury of twelve persons in all criminal cases.” Wells v. Commonwealth, Ky., 561
S.W.2d 85, 87 (1978), citing Coomer v. Commonwealth, Ky., 238 S.W.2d 161 (1951);
Cannon v. Commonwealth, 291 Ky. 50, 163 S.W.2d 15 (1942); see also RCr 9.82(l).
In Wells, the appellant was convicted of first-degree assault. Wells, 561 S.W.2d at 86.
Under the instruction on this charge, the appellant could have been convicted “if some
of the jurors believed one interpretation of the evidence, that he acted intentionally, and
if the remainder of them believed the other interpretation, that he acted wantonly.” Id.
at 87. The appellant argued that this deprived him of his constitutional right to a
unanimous verdict. Id. We disagreed, stating:
KRS 508.010 brings together two distinct culpable mental
states (intent and wantonness manifesting extreme
indifference to the value of human life) and punishes them
equally under specified circumstances. Either mental state
will support a conviction of assault in the first degree and
punishment for such crime. The legal effect of the
alternative conclusions is identical. There was ample
evidence to support a verdict on either theory of the case.
We hold that a verdict can not (sic) be successfully attacked
uoon the around that the iurors could have believed either of
two theories of the case where both interpretations are
SuDDorted bv the evidence and the oroof of either bevond a
reasonable doubt constitutes the same offense.
Id. at 88 (emphasis added).
In Boulder v. Commonwealth, Ky., 610 S.W.2d 615 (1980), overruled on other
grounds, Dale v. Commonwealth, Ky., 715 S.W.2d 227 (1986), we addressed the
question of whether a defendant is denied a unanimous verdict when the jury is
presented with alternate theories of guilt in the instructions, one of which is totally
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unsupported by the evidence. Id. at 617. We found that the appellant had been denied
his right to a unanimous verdict, stating:
The instructions submitting count one (first degree
assault) to the jury were improper. They provided alternative
grounds for a finding of guilt-either that John intended to
cause serious physical injury to “Cynthia” or that he was
wantonly engaging in conduct which created a risk of death
to “Cynthia.” The state of the evidence, however, is such
that it would be clearly unreasonable for a juror to believe
that John’s conduct was other than intentional. Because we
can not (sic) ascertain that all the iurors based their decision
on the first theorv. which is the onlv one supported by
evidence, we can not (sic) sav that the verdict was
unanimous as required by RCr 9.82(l) and Wells v.
Commonwealth, Ky., 561 S.W.2d 85 (1978). Accordingly,
we reverse the conviction of first degree assault and grant a
new trial on that charge.
Id. at 617 (emphasis added).
In Hayes v. Commonwealth, Ky., 625 S.W.2d 583 (1981) we reversed the
appellants murder conviction on the same grounds. The instructions presented to the
jury allowed it to find the appellant guilty of murder if it believed that when the appellant
shot the victim he either did so intentionally or was wantonly engaging in conduct which
created a grave risk of death. Id. at 584. As there was no evidence of wanton conduct,
we reversed the conviction because “[i]t would be clearly unreasonable for the jury to
believe that appellant’s conduct was other than intentional,” which thereby denied the
appellant his right to a unanimous verdict.~ Id. at 585.
In the case at bar, the Court of Appeals indicated that the instructions given on
the first-degree trafficking charge were in error, but went on to hold that the error’was
harmless, stating:
The evidence in this case, unlike in other cases, only lent
itself to one reasonable interpretation - that Burnett
possessed the crack cocaine with intent to sell. Both sides
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seem to concede that the evidence only could show
possession with intent to sell. Thus, there could be no
confusion by the jury in deciding on another method of
trafficking.
Burnett v. Commonwealth, Ky. App., 1997-CA-002076-MR, slip op. at 8-9 (rendered
January 15, 1999). However, the denial of a unanimous verdict--where the error is
properly preserved--is not subject to a harmless error analysis.
According to the logic of the Court of Appeals, the jury had to have based its
trafficking verdict on the possession-with-intent-to-sell method of trafficking because no
other theory was supported by the evidence. This reasoning is contrary to Wells,
Boulder and Hayes.
Wells holds that, when presented with alternate theories of guilt in an instruction,
the Commonwealth does not have to show that each juror adhered to the same theory.
Rather, the Commonwealth has to show that it has met its burden of proof under all of
the alternate theories presented in the instruction. Once that is shown, it becomes
irrelevant which theory each individual juror believed. This result ensures that a
defendant is convicted on proof beyond a reasonable doubt by all twelve jurors.
Boulder and Hayes hold that, when the Commonwealth cannot show that it has met its
burden of proof on all alternate theories presented to the jury in the instructions, then
the defendant’s right to a unanimous verdict has been violated. This is because it
cannot be ascertained from the verdict form or otherwise from the record that all of the
jurors voted to convict the defendant on a theory supported by the evidence.
The Court of Appeals’ harmless error analysis is no more than a rewording of the
standard of review applied to claims of error based on the trial court’s denial of a motion
for a directed verdict. The basis of the error in denying the appellant a unanimous
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verdict in both Boulder and Hayes was that the jury was presented with at least one
alternate theory of the case that was totally unsupported by the evidence. This error
will always be harmless under the Court of Appeals’ analysis, because that analysis
simply assumes that each juror did not convict on any alternate theory not supported by
the evidence; rather, each juror voted to convict on a theory that was supported by the
evidence. In other words, the Court of Appeals’ analysis treats the erroneous jury
instruction as mere surplusage and effectively overrules both Boulder and Hayes.
While the Court of Appeals’ analysis is appealing on the surface, it is a misstep
on a road best not traveled. The requirement that the Commonwealth must prove
beyond a reasonable doubt every fact necessary to constitute the crime with which a
defendant is charged is a basic and fundamental protection of the Due Process Clause
of the United States Constitution. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,
1073, 25 L. Ed. 2d 368, 375 (1970). Section 7 of the Kentucky Constitution and RCr
9.82(l) guarantee a defendant the right to a unanimous verdict. Construed together,
these constitutional provisions require that each juror’s verdict be based on a theory of
guilt in which the Commonwealth has proven each and every element beyond a
reasonable doubt. From the record before us, it cannot be ascertained whether all of
Burnett’s jurors voted to convict him on a theory that was supported by the evidence; it
cannot be ascertained that Burnett was afforded a unanimous verdict.
When a timely objection is made that a theory of guilt set forth in the instructions
is not supported by the evidence, the burden is slight upon a trial court to see that the
instructions conform to the evidence. The possible prejudice to basic constitutional
rights of the defendant is great. It is clear that in this case the interests of judicial
economy must yield to the restraints of the Kentucky and United States Constitutions.
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I
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Therefore, we hold that Burnett was denied his right to a unanimous verdict and reverse
the decision of the Court of Appeals and the judgment of the Jefferson Circuit Court
and remand for a new trial.
Cooper, Keller, and Stumbo, JJ., concur. Graves, J., dissents by separate
opinion, with Lambert, C.J., and Wintersheimer, J., joining that dissent.
COUNSEL FOR APPELLANT:
Daniel T. Goyette
Jefferson District Public Defender of Counsel
Bruce P. Hackett
Deputy Appellate Defender
Office of the Jefferson District Public Defender
200 Civic Plaza
719 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General of Kentucky
Dennis W. Shepherd
Assistant Attorney General
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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RENDERED: NOVEMBER 22,200O
TO BE PUBLISHED
1999-SC-0384-DG
CHAUNCEY L. BURNETT
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
97-CA-2076-MR
JEFFERSON CIRCUIT COURT NO. 97-CR-110
COMMONWEALTH OF KENTUCKY
APPELLEE
DISSENTING OPINION BY JUSTICE GRAVES
Respectfully, I dissent.
A review of the evidence reveals that there was no prejudice by the jury
instructions and that Appellant was not denied a unanimous verdict.
The circuit court instructed the jury on two offenses: Trafficking in a Controlled
Substance in the First Degree and the lesser-included offense of Possession of a
Controlled Substance in the First Degree. The Trafficking instruction read, in relevant
part, that Appellant was guilty if he “had the cocaine in his possession with the intent to
traffic in it.” Additionally, the instructions defined “Trafficking” as “to manufacture,
distribute, dispense, sell, transfer or possess with the intent to manufacture, distribute,
dispense, sell, or transfer a controlled substance.”
Even though Appellant asserts that the instruction defining “Trafficking,”
permitted the jury to convict on multiple theories of the offense which were unsupported
by the evidence, there is no indication the jury considered multiple theories. In fact,
there was no reason for the jury to consider multiple theories. The instruction defining
“Trafficking” was a general, definition instruction, not an instruction on alternate
theories. It was a correct statement of the law and it mirrors the statutory definition of
“Traffic” contained in KRS 218A.010.
Furthermore, there was no prejudice resulting from any possible over breadth in
the definition of “Trafficking.” As the Court of Appeals aptly stated, “[wlhile the trial
court’s instructions on trafficking’could have been more precisely crafted, this Court
cannot conclude that any error in this regard was so prejudicial as to require reversal.”
The facts presented at trial support this conclusion.
Under the “harmless error” doctrine, “[t]he court at every stage of the proceeding
must disregard any error or defect in the proceeding that does not affect the substantial
rights of the parties.” RCr 9.24; See also Commonwealth v. Donovan, Ky., 610 S.W.2d
601 (1980); Commonwealth v. Stamps, Ky., 672 S.W.2d 336 (1984). Even errors
involving constitutional rights may be found to be “harmless error.” See Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Delaware v. Van Arsdall,
475 U.S. 673, 106 S.Ct. 1431, 98 L.Ed.2d 674 (1986).
Here the most logical inference from the evidence is that the entire jury based its
verdict on the theory of possession with intent to sell. That particular theory was the
one and only theory of the case presented. In determining that the jury relied on that
theory alone, the Court of Appeals found that the evidence in this case, unlike in other
cases, only lent itself to one reasonable interpretation - that [Appellant] possessed the
crack cocaine with intent to sell. In fact, at trial, the parties conceded that the evidence
could only show possession with intent to sell. Thus, there could be no confusion by
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the jury in deciding on another method of trafficking. The total lack of evidence
supporting an alternate theory does not require reversal.
Here, the facts indicate that the instruction did not create a “substantial
possibility that the result would have been any different.” Abernathy v. Commonwealth,
Ky., 439 S.W.2d 949, 952 (1969), overruled in part, Blake v. Commonwealth, Ky., 646
S.W.2d 718 (1983). Any error was harmless. RCr 9.24. The evidence was
overwhelming that the drugs were possessed with the intent to sell, not any other
theory. Therefore, even if the jury had been instructed more precisely, there is no
indication that the verdict would have been any different. The instructions were not
prejudicial and Appellant received a unanimous verdict.
Any error was harmless, and this Court should affirm the Kentucky Court of
Appeals and the Jefferson Circuit Court.
Lambert, C.J., and Wintersheimer, J., join this dissent.
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